Can Domestic Court Defiance Strengthen International Tribunals?

by Jeffrey Dunoff

Julian’s thoughtful post can be located within a larger literature that states “nationalist” objections to domestic court use of international tribunal decisions. One underexplored question in this literature is whether nationalists should ever support domestic court use of international decisions. Another is whether internationalists (i.e., those typically sympathetic to international norms and bodies) should ever oppose domestic court use of international decisions.

The WTO provides an interesting case study. WTO dispute system is commonly understood as the most fully developed in international law. However, U.S. courts generally do not use WTO panel or Appellate Body (AB) decisions. The implementing legislation denies direct effect to panel/AB reports: “No person . . . may challenge . . . any action or inaction by any [federal or state entity] . . . on the ground that such action or inaction is inconsistent with [the Uruguay Round agreements].” Moreover, U.S. courts generally do not give panel/AB reports indirect effect, either through invocation of Charming Betsy or other interpretative strategies.

Should internationalists support or critique U.S. practice? I think the answer should be informed by examination of at least three different issues: Who should authoritatively interpret WTO law? Would domestic court litigation increase compliance with WTO norms? How would domestic court use of AB reports impact the WTO system?

Domestic court application of panel/AB reports might substitute one form of supremacy for another. On the one hand, judicial use of WTO norms to trump – or even help interpret – domestic law would treat these international norms as “supreme Law of the Land.” Moreover, domestic courts use of panel/AB rulings might be thought to enhance WTO power and prestige in much the same way that national court use of European Court of Justice opinions helped elevate the importance of the ECJ. Hence, domestic cases involving the straightforward application of WTO law – such as when an importer challenged Belgium’s banana import regime as based on EC regulations determined to be GATT-illegal – might enhance WTO compliance.

On the other hand, less straightforward applications of WTO law would inevitably follow. If the AB holds that “zeroing,” a particular methodology for calculating dumping margins, violates WTO norms in a dispute involving the EC, should a US court apply the AB’s rationale to a similar US practice? Or, if the AB holds that US use of zeroing in one context violates WTO norms, should a US court extend that holding in a challenge to the use of zeroing in a different context?

In other words, domestic courts would not mechanically receive and apply WTO norms. Rather, they will become active creators of WTO law. As a result, these courts would actively shape the nature and breadth of WTO norms. Moreover, given the size of the US market, the complexity of US trade statutes, and the creativity of the trade bar, it is likely that US courts would become de facto the lead judicial bodies interpreting WTO law.

This development would challenge the supremacy of WTO law – or at least the supremacy of AB interpretations of WTO law – as domestic courts would displace the AB as the sole authoritative tribunal that interprets and applies WTO law. But little in the theory of comparative institutional competence – or judicial practice – suggests that domestic courts are superior to the AB in interpreting WTO law. Moreover, domestic rulings would also shatter the uniformity of WTO law, as different national courts would produce different readings of WTO law.

Would decentralized interpretation and application of WTO norms by domestic courts generate benefits that would overcome the costs of transferring lead authority for judicial interpretation of WTO norms from Geneva to domestic courts?

The most common argument in favor of domestic court use of international tribunal decisions is rooted in international law’s famous lack of enforcement mechanisms; domestic courts are uniquely positioned to give effect to judgements of international tribunals.

But even if enhanced compliance is the goal (a position I challenge below), it is not clear that domestic court enforcement is a sensible strategy. A central difficulty is that we do not know the relationship between private enforcement in domestic courts and state enforcement through WTO proceedings. In particular, we do not know whether domestic and international actions would act as compliments or as substitutes.

For example, the AB held that U.S. measures supporting cotton farmers, and EC measures supporting sugar production, constitute unlawful export subsidies. If foreign agricultural interests could challenge these subsides as GATT-illegal in domestic courts, might Brazil or other states be less inclined to file similar actions in Geneva? There are both theoretical and practical reasons to believe that private, domestic actions could crowd out Geneva-based actions. But this suggests a curious result: If the possibility of domestic actions had the effect of displacing WTO dispute settlement proceedings, then opening domestic courts to WTO-related claims could – ironically – decrease the net amount of litigation to enforce WTO norms.

One final, albeit important, consideration merits attention. WTO dispute settlement is simply one element of a much larger trade regime. Drawing on an argument John Ruggie developed, I argue the WTO system is characterized by “embedded legalism” – that the DSU’s commitment to rule-based dispute settlement is embedded within a larger WTO commitment to the political management of trade relations. As I’ll argue in more detail at APSA, domestic court use of WTO law threatens to disembed the WTO’s rule-orientation from its larger political context, at significant cost to the trade regime.

In short, international tribunals have varied jurisdictions, serve varied purposes, and have diverse enforcement mechanisms. As the WTO example suggests, internationalists should not assume that domestic use of international tribunal decisions will necessarily enhance compliance, or the prestige or power of international tribunals. Rather, arguments over the desirability of domestic court use of international tribunal decisions should occur on a regime by regime basis.

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